Judge, Jury, and Arbitrator: The NBA Constitution

Dave Hoffman

Dave Hoffman is the Murray Shusterman Professor of Transactional and Business Law at Temple Law School. He specializes in law and psychology, contracts, and quantitative analysis of civil procedure. He currently teaches contracts, civil procedure, corporations, and law and economics.

You may also like...

4 Responses

  1. Mike McCann says:

    Hi Dave,

    Your pieces raises some excellent points about the FAA and it’s interaction with the NBA’s internal system of law. I also appreciate you linking to my SI story, but just to be clear about that story, I was referring to a waiver of recourse clause in the franchise agreement between an owner and the NBA, not the language in the league constitution or bylaws. My understanding is each franchise agreement contains such a clause and it bars suing the NBA and other owners. This would be language independent from the documents the NBA made available today (which document trumps, I’m not sure, and you may reach the same conclusion even with the presence of the franchise agreement, but just wanted to note this).

    Enjoyed reading your piece and hope all is well.


  2. Dave Hoffman says:

    Thanks Mike. And I also recently saw your piece in SI which further fleshes out the legal complexities.

  3. Mike Stern says:

    I am no expert on sports law, but a few minutes perusing the NBA’s “Constitution” (not an unusual term, some law firms I know use it too) suggests that Silver’s actions rest on a pretty slim legal foundation. Essentially, you would have to read the detailed provisions relating to covered persons, proscribed offenses, procedures and remedies as meaning that the Commissioner can do whatever he wants to anyone within his regulatory ambit (players, coaches, referees, owners, etc.), at least so long as he has the owners and the court of public opinion on his side. I think it will be pretty difficult to sell that interpretation to a court or arbitrator, particularly if they are making their decision long after the public outrage has subsided.

  4. Mike Stern says:

    I read Mike McCann’s piece and agree that it is very helpful, but I would take issue with his statement that “Sterling seems to lack a viable argument that his conduct was not seriously detrimental to the NBA.” It seems to me that Sterling has a pretty good argument that he did not engage in any “conduct” as that term is used in the NBA charter. This is buttressed by looking at Article 35, which seems to distinguish between “conduct” and “statements”. A player can be punished for either (although the fine for statements is much less than what was imposed on Sterling), but Article 35A only provides for disciplining persons other than players for “conduct.” I imagine that Sterling’s lawyers will vigorously contest the claim that his private conversations could be considered conduct detrimental to the NBA.